In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.
Between:
F.C.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
Applicant: F.C.
Counsel for the Applicant: Michael Rotondo
Counsel for the Respondent: Suzanne Clarke
Claims Representative for the Respondent: Thourla Moses-Moore
HEARD, Oral Hearing: November 6, 7 & 8, 2018
OVERVIEW
1The applicant, F.C., was involved in an accident on November 6, 2015, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The applicant’s claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) to resolve the matter.
ISSUES IN DISPUTE
2The issues to be decided at this hearing are:
a. Is the applicant entitled to receive a non-earner benefit in the amount of $185.00 per week for the period from May 6, 2016 to date and ongoing?
b. Is the applicant entitled to receive a medical benefit in the amount of $2,230.68 for physiotherapy services recommended in a treatment plan by Dr. Marciniak submitted on January 24, 2017 and denied by the respondent on March 22, 2017?
c. Is the applicant entitled to receive interest on any overdue payment of benefits?
d. Is the applicant entitled to receive an award pursuant to section 10 of Reg.664, R.R.O. 1990 with respect to the non-earner benefit and the medical benefit, noted hereinabove?
RESULT
3Based on the totality of the evidence before me, I find that:
a. The applicant is entitled to receive payment for a non-earner benefit at the rate of $185.00 per week from the date of receipt of the new OCF-3 on February 27, 2017, until the respondent provides sufficient notice to the applicant as required under the Schedule.
b. The applicant is entitled to the payment of the treatment plan in dispute.
c. As I have found the benefits in dispute payable, the applicant is entitled to interest, in accordance with the Schedule.
d. The applicant is entitled to an award pursuant to section 10 of Reg. 664, R.R.O. 1990 in the amount of $5,190.57 payable by the respondent.664, R.R.O. 1990 in the amount of $3,000.00
Procedural Issues
4The applicant brought forth motions, which were dealt with at the hearing.
Motion to exclude surveillance entered by the respondent:
5The applicant brought a motion seeking to exclude the surveillance evidence entered by respondent, as it was filed after the deadline to produce such documents, set in the Order of the case conference adjudicator.
6Although I agreed with the applicant that the Tribunal’s rules make it clear that the timelines set out within it are subject to any order made by an adjudicator, I do not find there was sufficient evidence of prejudice to the applicant receiving the surveillance documents after that date, as the applicant was served with this material a month prior to the hearing.
7I believe that this evidence may be directly relevant to the issues at hand and that the probative value of this evidence may outweigh the little prejudice, if any, presented to me.
8As such, the applicant’s motion to exclude the surveillance evidence was dismissed.
Motion to submit late documents into evidence:
9The applicant brought a motion to enter a supplemental brief into evidence at the hearing.
10The supplemental brief consisted of three documents, namely
a. Application for Accident Benefits (OCF-1)
b. Explanation of benefits dated December 16, 2015
c. Standard benefit statement May 6, 2016
11The respondent agreed to allow the Explanation of Benefits dated December 16, 2015 in, and as such I accepted this document to be entered into evidence.
12After hearing submissions on the remaining two documents, I allowed the OCF-1 in, as I found this document to be relevant and did not find there would be prejudice to the respondent in allowing it in, as this document was clearly received by the respondent at the initiation of this claim.
13I did not allow the Standard Benefits Statement dated May 6, 2016 in, as I did not find this relevant to the issues before me.
ANALYSIS
Non-Earner Benefit:
14The applicant made it clear that the basis on which his application will be argued is on technical grounds.
15Neither the applicant nor any other witnesses on behalf of the applicant testified at the hearing.
16By way of background, the applicant submitted a Disability Certificate (OCF-3) dated December 14, 2015 to the insurer. This OCF-3 stated “No” in respect to whether the applicant sustained a complete inability to carry on a normal life.
17The respondent provided an Explanation of Benefits (EOB) dated December 16, 2016 to the applicant. Along with addressing numerous other benefits, the EOB stated that based on his application and OCF-3 dated December 14, 2015, which indicates that he does not suffer a complete inability to carry on a normal life, the applicant is not entitled to non-earner benefits (NEBs).
18The respondent sent a further EOB to the applicant dated May 10, 2016, the 26 weeks mark since the accident, stating that no medical documentation has been submitted to indicate that the applicant suffered a complete inability to carry on a normal life and thus he is not entitled to NEBs.
19The applicant sent in a signed Election of Income Replacement, Non-Earner or Caregiver Benefit (OCF-10) dated December 22, 2016, to the respondent, electing NEBs. The respondent sent correspondence in reply, dated January 12, 2017 referring him back to the EOB of May 10, 2016 and reiterating that he is not entitled to NEBs as they have not received any medical documentation that stated he sustained a complete inability to carry on a normal life. It further stated that the OCF-3 dated December 14, 2015 does not support any impairment he may have sustained due to the accident and as such, no election is required.
20The applicant submitted another OCF-3 dated January 16, 2017 on February 27, 2017 to the respondent. This OCF-3 stated “Yes” in respect to whether the applicant sustained a complete inability to carry on a normal life.
21By way of correspondence to the applicant, dated March 8, 2017, the respondent wrote that they had received the new OCF-3 dated January 16, 2107 and that the healthcare practitioner indicated that he may be eligible for NEBs which would provide $185 per week. It also stated that no benefit would be payable for the 26 weeks from the date he becomes eligible.
22Also within this correspondence, the respondent stated “in order for us to determine your eligibility for this benefit we need more information from you”. The insurer then listed documents and information that they are requesting pursuant to S.33 of the Schedule and stated that the applicant has 10 days from the time of receipt of this letter to provide them.
23The applicant submits that via e-mail, the applicant provided various medical records, as was requested by the insurer, on November 16, 2017 and January 16, 2018.
24The applicant argues that no further response or follow up was sent by the respondent to the applicant regarding this.
25The applicant submits that he is entitled to NEBs based on a procedural breach of the respondent obligations under the Schedule.
26S. 36(4) of the Schedule states:
(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
(a) pay the specified benefit;
(b) give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
(c) send a request to the applicant under subsection 33 (1) or (2).
27Although the respondent is not relying on s.33 as a basis for its denial of the NEB, S. 33 was engaged when the respondent sent correspondence in response to the new OCF-3, requesting further documents pursuant to s. 33, in order to assess entitlement to the NEB and as such, S. 36 (5) of the Schedule is also engaged:
(5) If the insurer sends a request to the applicant under subsection 33 (1) or (2), the insurer shall, within 10 business days after the applicant complies with the request,
(a) pay the specified benefit; or
(b) give the applicant a notice described in clause (4) (b).
28In the case at hand, based on the facts and evidence before me, I do not find that the insurer complied with s. 36(5) (a) nor (b). In fact, the respondent failed to respond entirely following the applicant’s submissions of medical records as per their s.33 request.
29The respondent submits that it relied on its initial denial of the NEB, dated December 16, 2015, stating that they clearly outlined the medical and other reasons for the denial and that is was clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute its denial of the NEBs.
30The respondent further submits that within seven business days of receiving the updated OCF-3 they requested medical documents from the applicant pursuant to s. 33, in order to determine his entitlement to the benefit.
31Regardless of the first OCF-3, which prompted the initial denial of the NEB, the new OCF-3 submitted had a material change in the applicant’s condition, namely that the medical practitioner who completed it indicated that the applicant suffers a complete inability to carry on a normal life, thus triggering the possible entitlement to the benefit. This was clearly acknowledged by the respondent within their correspondence dated March 8, 2017.
32Given the fact the respondent made a s. 33 request in response to receiving the new OCF-3, they must then comply with the Schedule with respect to receiving documents requested under this section, that is s. 36(5), as stated above.
33Relying on the previous denial is simply not sufficient. Nor is it sufficient to partially dispel the obligation under the Schedule by making a s.33 request. It does not end there.
34The schedule is clear in terms of the obligations imposed on the applicant in providing information and also on the respondent in responding to the information. I find that in this case, the respondent did not comply with its obligations as set out in the Schedule with respect to responding to an applicant’s claim after receiving documents requested. Any other interpretation does not align with the wording of the schedule and the purpose of the accident benefit scheme.
35The Schedule is clear with respect to non-compliance with S. 36 (5) by an insurer. Section 36(6) states:
(6) If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.
36There is no evidence before me that the respondent has remedied this non-compliance by giving proper notice as per s. 36(4)(b) to date.
37As such, the respondent is liable to pay the non-earner benefit at the rate of $185.00 per week from the date of receipt of the new OCF-3 on February 27, 2017 until they provide notice to the applicant as stated above.
Medical Benefits:
38Again, the applicant’s argument for entitlement for the medical benefit claim within this application is that the respondent breached their obligations under the Schedule.
39The applicant argues that the respondent provided a deficient notice and denial of the Treatment and Assessment Plan (OCF-18) dated January 24, 2017 for chiropractic services in the amount of $2,230.58
40Upon receiving the subject OCF-18, the respondent sent correspondence to the applicant dated February 2, 2017 with an explanation of benefits and giving notice of an insurer’s examination which he was required to attend. The relevant section of the notice reads:
“As your impairments are considered to meet the definition of “Minor Inujury”, the policy limit for your medical and rehabilitation benefits is $3,500, which has been reached at this point.
Because of this, we are unable to consider this treatment plan [ citing the details of the treatment plan submitted]
Under s.44 of the Statutory Accident Benefits Schedule (SABS), you are now required to attend an independent medical examination to review these recommendations
Medical Reason: upon review of the minor injury guideline and the treating practitioners medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly minor”
41The applicant’s position is that the notice was deficient in that it did not provide “medical reasons and all of the other reasons ” as per the Schedule. The respondent disagrees.
42Section 38(8) of the Schedule sets out the requirement for the insurer in responding to medical rehabilitation benefits submitted by an insured:
(8) Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
43Under section 44 of the Schedule, an insurer has the right to conduct its own assessments by medical health professionals to help it determine if an insured person is entitled or continues to be entitled to benefits.
44Section 44(5)(a) of the Schedule sets out the following requirements for insurer assessments, as follows:
(5) If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out:
(a) the medical and any other reasons for the examination
45In both sections referred to above, there is an obligation on the insurer to provide “medical and any other reasons”. The Tribunal has provided guidance in numerous decisions as to what that entails.
46I refer to Executive Chair Lamoureux’s reconsideration decision in M.B. v Aviva Insurance Canada2 (“M.B”), at para. 26, which was reiterated in various of her other reconsiderations on both sections 38(8) and 44(5)(a):
In my view, an insurer satisfies its obligation to provide its “medial and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.
47Considering these guidelines in light the case at hand, I do not find that simply stating that the applicant’s injuries are considered minor injuries and that the health practitioner “has not provided compelling evidence the impairment sustained is not predominantly minor”, is sufficient to dispel the respondent’s obligation to provide medical and all other reasons for the denial of the treatment plan. It is simply too vague.
48There was no reference to which treating health practitioner the insurer was referring to nor what medical evidence was reviewed to come to this conclusion. Albeit, it is not necessary for an insurer to write a comprehensive list of every medical document reviewed, however I do find it necessary for there to be an explanation as to why they came to the conclusion that there is insufficient medical evidence that would take him out of the MIG.
49The respondent submits that it has provided a satisfactory explanation as to the basis for the examination and is not required to “invent” a reason as to why the treatment plan is required to be assessed. It relies on the FSCO decision in Gao v. State Farm (Gao)3
50I find that Gao is distinguishable from this case. In Gao, the insurer had no information with respect to the claimant’s impairments, other than the claimant’s self-reported impairments. The insurer had no further information, based on which it could provide medical reasons for the examination. Based on these circumstances, Adjudicator Newland concluded that the insurer is not required to “invent a medical or other reason, where it has not been provided with any medical documentation”
51The standard is to provide medical reasons based on the information before the insurer at the time of the denial. The respondent ought to have drawn from the medical evidence, whatever may have been in their possession at the time, and included medical reasons they were relying on that lead them to this denial.
52I do not find that an unsophisticated person, reading this notice, would have a wholesome understanding as to why their claim is being denied, what information was looked at to draw this conclusion, what specifically is keeping them in the “Minor Injury Guideline” and whether this is something they wish to dispute or not.
53The applicant also argued that there was an incongruity in the stated reason for denial within the initial denial dated February 2, 2017 and the ultimate denial, after the completion of the insurer’s examination, dated March 22, 2017.
54The applicant submits that the reason for denial in the February 2, 2017 notice cited the Minor Injury Guideline, whereas the reason for denial in the March 22, 2017 notice cited the OCF-18 was not reasonable and necessary.
55The applicant also argues that he attended the IE with the view that he was being assessed for the minor injury guideline and not as to whether the treatment plan was reasonable and necessary.
56The February 2, 2017 notice did set out the details of the treatment plan and stated that the applicant was required to attend s.44 IE’s “to review these recommendations”. Although it may be argued that such a statement refers to the need to assess the reasonableness and necessity of the treatment plan, I am not certain that an unsophisticated person, who may or may not fully understand the test of establishing reasonableness and necessity, would gather this from such a ambiguous statement.
57As such, I find both the notices to be deficient.
58The Schedule in s.38(11) clearly sets out the consequences to an insurer’s failure to comply with the notice obligations of s.38(8):
- If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:
- The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection
59I find that these consequences apply here. There is also no evidence before me to suggest that the respondent has cured its deficient notice and as such the entirety of the treatment plan in dispute is payable.
INTEREST
60As I have found the non-earner benefits payable from February 27, 2017, interest is to be awarded in accordance with the Schedule on these benefits.
61Further, as I have found the medical benefit in dispute is also payable, interest is awarded in accordance with the Schedule with respect to this benefit.
Award pursuant to section 10 of Reg.664, R.R.O. 1990:
62The applicant seeks an award pursuant to section 10 of Reg.664, R.R.O. 1990:
(10) If the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
63The applicant submits that the respondent unreasonably withheld payment and acted in bad faith in handling his claim to benefits.
64Specifically, the applicant submits that the respondent sought to avoid its payment obligations under the Schedule by referencing irrelevant evidence to dispute the claim and rather than sending the applicant to a professional to assess his entitlement for NEBs, they instead choose to conduct surveillance
65The applicant further submits that although the applicant complied with the respondent’s request to have him assessed with respect to his OCF-18 on the representation that he would only be assessed with respect to the Minor Injury Guideline ( MIG), he later learned that his claim was being denied based on the reasonableness and necessity of the OCF-18 and that payment would be denied despite him being removed from the MIG
66I am inclined to disagree with the applicant’s argument and do not find it sufficient enough to trigger an award claim.
67The requirement under the schedule with respect to s.44 insurer examinations as per s. 44(1) is that an insurer may send an insured to an IE, but not more often than is reasonably necessary. It is not an obligation on the insurer to send an applicant to IE’s
68In addition, the respondent has the right to conduct surveillance on an insured.
69Although I found the notice requirements under the schedule were not complied with by the respondent, I still do not find this conduct enough to attract such a grave remedy.
70With that said, I do find the respondent’s disregard of the applicant’s NEB claim, after specifically requesting documents under s.33 in order to assess entitlement, enough to prompt an award.
71It is my view, that the conduct of the respondent in not only failing to comply with the requirements under the Schedule once they received s.33 documents, which they had requested, but rather the complete neglect to continue to adjust the file regarding their claim to this benefit, is a total disregard to the purpose of the Schedule.
72An insurer’s obligation to continue to adjust a file in good faith does not end when they request and receive documents, which was the case here. It cannot be expected of the applicant to assume what the respondent’s position is on a benefit they are claiming. It is impetrative for the applicant to receive correspondence from their insurer. Without this, not only are they left wondering where their claim stands but they are also being delayed in the potential payment of these benefits.
73Here, not only did the respondent fail to continue to adjust this file, and not correspond with the applicant, but also failed to adhere to the non-compliance consequences set out in the Schedule, to date. There was no payment of the benefit for the period of non-compliance nor was there a sufficient notice regarding the NEB sent to cure this.
74The quantum payable on the NEB to the date of this decision is based on the rate of $185.00 per week from the date of receipt of the new OCF-3 on February 27, 2017 until the respondent remedies the notice to the applicant as stated above. I do not have evidence before me to suggest that this has been remedied as of the date of this decision. Therefore, the amount payable as of the date of this decision would be approximately $25,952.86.
75I do not find that the conduct of the respondent would attract the maximum award of 50% of the payable benefit. I do, however, find that the conduct of the respondent, outlined above, would warrant an award of 20% of the payable benefit as of the date of this decision As such, I find the applicant in entitled to an award in the amount of $5,190.57, payable by the respondent, as I have found the respondent has reasonably withheld or delayed payment.
76Based on the above, I order the following:
a. The applicant is entitled to receive payment for a non-earner benefit at the rate of $185.00 per week from the date of receipt of the new OCF-3 on February 27, 2017, until the respondent provides sufficient notice to the applicant as required under the Schedule.
b. The applicant is entitled to the payment of the treatment plan in dispute.
c. As I have found the benefits in dispute payable, the applicant is entitled to interest, in accordance with the Schedule.
d. The applicant is entitled to an award pursuant to section 10 of Reg. 664, R.R.O. 1990 in the amount of $5,190.57 payable by the respondent.
Released: November 15, 2019
Meray Daoud
Adjudicator
Footnotes
- O. Reg. 34/10.
- M.B. v. Aviva Insurance Canada 2017 Canlii 87160 ( ON LAT)
- Gui Fang Gao v. State farm Automobile Insurance Company (2015) FSCO A13-002281